Transcript APDA 2015 DUI Sentencing // DUI Legislative Changes Outside-the-Box DUI // DUI Life Hacks // Ignition Interlock Devices Attorney Brian Sloan Attorney Carmen Gosselin Attorney Mike.

APDA 2015
DUI Sentencing // DUI Legislative Changes
Outside-the-Box DUI // DUI Life Hacks //
Ignition Interlock Devices
Attorney Brian Sloan
Attorney Carmen Gosselin
Attorney Mike Roth
APDA 2013
DUI Sentencing
APDA 2015
DUI Legislative Changes
New Laws for 2015
THE GOOD
General Effective Date: July 3, 2015
Defensive Driving School Eligibility
Every 12 Months
§28-3392
HB2308
Defensive Driving Eligibility Reduced from every 24 months to every 12 months.
Effective Date – 7/3/2015
SUBSTANTIVE VS. PROCEDURAL
If Judge believes the new law is Procedural, then they will apply it to all
cases that come before their court, despite the commission date of the
offense.
If the judge believes the new law is Substantive, then they will only apply
the new law to a case with a commission date after the “Effective Date,”
which is “From and After July 3, 2015.”
Community Service In Lieu of Fines & Fees
§13-824
SB1116
A Municipal or Justice Court may order Community Restitution in lieu of
paying a fine, fee, assessment or jail incarceration cost, if the court finds the
Defendant is unable to pay all or part of the cost. Rate: $10 / hour
Does not seem to violate §28-1389, which prevents waiving fines, fees,
surcharges or assessments.
Effective Date – December 31, 2015
Screening & Counseling through
United States Department of Veteran Affairs
§5-395.01 & §28-1387 & §28-1445
HB2294
Those charged with Boating
Under the Influence, or Driving
Under the Influence, can
complete Alcohol or Drug,
Screening & Counseling
through the U.S. Dept. of
Veteran Affairs.
Can also do a Screening
through a Probation Department
in order to reinstate license or
get Restricted Driving Permit.
Effective Date – 7/3/2015
New Laws for 2015
THE BAD
OUT OF STATE 3RD OR MORE
PRIOR FELONY CONVICTION
§13-105(22)(d)
HB2301
A 3rd or More Prior Felony
Conviction includes Out-of-State
Convictions that were punishable a
as a Felony in that state.
This supplements the law that was
previously held to include any
allegeable “Prior Felony
Conviction” that was punishable as
a Felony in another state.
Effective Date – July 3, 2015
New Laws for 2015
THE INTERESTING
Motorcycle Handlebars
§28-964
HB2345
C. A person shall not operate a motorcycle,
all-terrain vehicle or motor driven cycle
equipped with handlebars that are
positioned so that the hands of the
operator are above the operator's shoulder
height when the operator is sitting astride
the seat and the operator's hands are on
the handlebar grips.
Motorcycle Handlebars
§28-964
HB2345
C. A person shall not operate a motorcycle,
all-terrain vehicle or motor driven cycle
equipped with handlebars that are
positioned so that the hands of the
operator are above the operator's shoulder
height when the operator is sitting astride
the seat and the operator's hands are on
the handlebar grips.
NO MORE!!!
DELETED FROM THE LAW
Effective Date – 7/3/2015
Motorcycle Occupants
§28-892(B)
HB2336
A Motorcycle may only have a passenger if the Motorcycle is
designed to carry more than one person. A passenger may only ride
on a permanent and regular seat if designed for two people and
firmly attached to the motorcycle.
Effective Date – 7/3/2015
Auto-Cycle
§28-101(5)
SB1051
"Autocycle" - A Three-wheeled Motorcycle with a completely enclosed
seating area for the driver and passenger, which includes a roll cage,
seatbelts, and antilock brakes, and is controlled with a steering wheel and
pedals.
A Class M License is NOT necessary.
Effective Date – 7/3/2015
Motorized QuadriCycle
§28-101(36)
HB2211
Motorized Quadricycle is an emission-free, self propelled Commercial motor vehicle, with
at least four wheels in contact with the ground, seats at least eight passengers including the
driver, and relies solely on an electric motor, without assistance from pedals or passengers,
but may include pedals operated by the passengers.
It is licensed as a Limousine, but may
not be operated at a speed of more than
15 mph.
It is only a neighborhood vehicle, and
may not be driven on a highway with a
posted speed limit of more than 35
mph.
Effective Date – 7/3/2015
Repetitive Offenders
§13-703
HB2289
If a person is convicted of multiple Felony offenses that were not
committed on the same occasion, but are either consolidated for trial or
are not Historical Prior Felony Convictions, the person shall be sentenced:
1st Offense – 1st Time Felony
2nd Offense – Category 1 Repetitive Offender
3rd + Offense – Category 2 Repetitive Offender
Effective Date – 7/3/2015
Aggravated Assault with Simulated Deadly Weapon
§13-1204(A)
HB2304
13-1204. Aggravated assault;
classification; definition
A. A person commits aggravated
assault if the person commits
assault as prescribed by
section 13-1203 under any of
the following circumstances:
11. If the person uses a simulated
deadly weapon
Effective Date – 7/3/2015
APDA 2015
Outside-the-Box DUI
DON’T
PLAY
THE
GAME!
CHANGE
THE
GAME!
(1)
Actual Physical
Control
Actual Physical Control
State v. Zavala, 136 Ariz. 356 (1983):
Officer testified that he had gone past an area
20 minutes earlier… no vehicle. Drove
past the same area 20 minutes later…
vehicle.
Actual Physical Control
Arizona Supreme Court nonetheless said:
“The [DUI] statute describes a single offense
that may be committed in either of two
ways” [Driving & APC]
Actual Physical Control
“In the instant case, there is no dispute that the
defendant's truck was motionless at the point at
which the first officer encountered it. There was no
"driving under the influence" in the presence of the
officer.”
…
“The defendant may not be convicted of the crime
of driving while intoxicated pursuant to that
portion of A.R.S. § 28- 692(A)”
Actual Physical Control
MOTION TO THE COURT:
Defendant’s Motion In Limine
To Include Jury Instruction
That Precludes “Driving,” and/or
Argument RE: Direct or
Circumstantial Evidence of Driving
Actual Physical Control
State v. Hallman, 137 Ariz. 31 (1983):
Improper closing argument by the Prosecutor
will constitute a constitutional violation
where such argument (1) called to the
attention of jurors matters that they would
not be justified in considering in determining
their verdict, and (2) which improperly
influenced the jurors under the circumstances
of the case.
Actual Physical Control
State v. Tarr, 235 Ariz. 288 (App. 2014):
Defense Attorney argued:
Let’s go with standard RAJI, Love, Zaragoza
instruction:
Actual Physical Control
In determining whether the defendant was in actual physical control of the
vehicle, you should consider the totality of the circumstances shown by the
evidence.
1. Whether the vehicle was running;
2. Whether the ignition was on;
3. Where the ignition key was located;
4. Where and in what position the driver was found in the vehicle;
5. Whether the person was awake or asleep;
6. Whether the vehicle's headlights were on;
7. Where the vehicle was stopped;
8. Whether the driver had voluntarily pulled off the road;
9. Time of day;
10. Weather conditions;
11. Whether the heater or air conditioner was on;
12. Whether the windows were up or down;
13. Any explanation of the circumstances shown by the evidence.
Actual Physical Control
BUT…
Actual Physical Control
BUT…
Let’s Change it a Bit!
Actual Physical Control
Rather than saying:
This list is not meant to be all-inclusive. It is up to you
to examine all the available evidence and weigh its
credibility in determining whether the defendant
actually posed a threat to the public by the exercise of
present or imminent control of the vehicle while
impaired.
Actual Physical Control
Let’s use the ACTUAL language from the
Zaragoza case, and have it say:
This list is not meant to be all-inclusive. It is up to you
to examine all the available evidence and weigh its
credibility in determining whether the defendant was
simply using the vehicle as a stationary shelter or
actually posed a threat to the public by the exercise of
present or imminent control over it while impaired.
Actual Physical Control
Tarr Court of Appeals held:
• Shelter Rule language in Love NOT
overruled by Zaragoza… still a defense!
Actual Physical Control
Tarr Court of Appeals held:
• Shelter Rule language in Love NOT
overruled by Zaragoza… still a defense!
• Trial Court failure to give requested
instruction did NOT result in an Abuse of
Discretion, as standard jury instructions
were enough.
Actual Physical Control
Tarr Court of Appeals held:
HOWEVER:
“This list is not meant to be all-inclusive. It is up to you to
examine all the available evidence and weigh its credibility in
determining whether the defendant was simply using the
vehicle as a stationary shelter or actually posed a threat to the
public by the exercise of present or imminent control over it
while impaired.”
IS A CORRECT STATEMENT OF THE LAW!
Actual Physical Control
Tarr Court of Appeals ALSO held:
“[A] trial court may supplement the
instruction to aid the jury as long as any
additional language properly states the law.”
Actual Physical Control
MOTION TO THE COURT:
Defendant’s Request for Jury Instructions:
…
11. Whether the heater or air conditioner was on;
12. Whether the windows were up or down;
13. Any explanation of the circumstances shown by the evidence.
“This list is not meant to be all-inclusive. It is up to you to
examine all the available evidence and weigh its credibility in
determining whether the defendant was simply using the
vehicle as a stationary shelter or actually posed a threat to
the public by the exercise of present or imminent control over
it while impaired.”
Actual Physical Control
Tarr Didn’t Help Tarr
BUT
Tarr Helps Us!
(2)
28-1382(I)…
Without an IID
28-1382(I)… Without an IID
At the time of sentencing, if the person is
convicted of a a 1st Time Extreme DUI, the
judge may suspend all but nine days of the
sentence if the person equips any motor
vehicle the person operates with a certified
Ignition Interlock Device for a period 12
months.
28-1382(I)… Without an IID
At the time of sentencing, if the person is
convicted of a a 1st Time Super Extreme
DUI, the judge may suspend all but 14 days
of the sentence if the person equips any
motor vehicle the person operates with a
certified Ignition Interlock Device for a
period 12 months.
28-1382(I)… Without an IID
So what about the poor person who can no
longer afford a car, or the person who
decides to change their life, and never drive
again.
28-1382(I)… Without an IID
So what about the poor person who can no
longer afford a car, or the person who
decides to change their life, and never drive
again.
You are Poor… or You are Doing the Right
Thing…
28-1382(I)… Without an IID
So what about the poor person who can no
longer afford a car, or the person who
decides to change their life, and never drive
again.
You are Poor… or You are Doing the Right
Thing…
No Benefit for You!
28-1382(I)… Without an IID
Wait a minute…
ARS 28-1382(I) says:
Days off of jail if “the person equips any motor
vehicle the person operates with a certified IID for a
period of 12 months”
28-1382(I)… Without an IID
Wait a minute…
ARS 28-1382(I) says:
Days off of jail if “the person equips any motor
vehicle the person operates with a certified IID for a
period of 12 months”
I will install it on ANY Vehicle I operate… I will
not be operating any vehicle!
28-1382(I)… Without an IID
Wait a minute…
ARS 28-1382(I) says:
Days off of jail if “the person equips any motor
vehicle the person operates with a certified IID for a
period of 12 months”
I will install it on ANY Vehicle I operate… I will
not be operating any vehicle!
That complies!!!
28-1382(I)… Without an IID
12 months later, go into court and provide the court
with:
• A Certified MVD Record, showing that there were
no run-ins with the law, and no charges or convictions.
• A criminal background check.
• A notarized statement, signed by the client, stating
that client did not operate a vehicle in the past year.
(3)
Medical
Marijuana
DUI
Medical Marijuana DUI
Darrah v. McClennen ex rel. County of Maricopa,
236 Ariz. 185 (App. 2014)
The narrow question before us is whether Arizona's Medical
Marijuana Act (“AMMA”) prohibits the State from
prosecuting an authorized marijuana user for driving under
the influence (“DUI”) pursuant to Arizona Revised Statutes
(“A.R.S.”) section 28–1381(A)(3), which criminalizes
driving while there is any prohibited drug or its metabolite
in a person's body. For the reasons set forth below, we
conclude that the AMMA does not give an authorized
medical marijuana user immunity from prosecution.
Medical Marijuana DUI
Darrah v. McClennen ex rel. County of Maricopa,
236 Ariz. 185 (App. 2014)
The narrow question before us is whether Arizona's Medical
Marijuana Act (“AMMA”) prohibits the State from
prosecuting an authorized marijuana user for driving under
the influence (“DUI”) pursuant to Arizona Revised Statutes
(“A.R.S.”) section 28–1381(A)(3), which criminalizes
driving while there is any prohibited drug or its metabolite
in a person's body. For the reasons set forth below, we
conclude that the AMMA does not give an authorized
medical marijuana user immunity from prosecution.
Medical Marijuana DUI
In referencing State ex rel. Montgomery v. Harris, 234 Ariz.
343 (2014) (AKA Shilgevorkyan), the Darrah court stated:
“In reaching this conclusion, the court explained that the
AMMA legalizes marijuana for medicinal purposes, but
“[d]espite the legality of such use [,] prosecutors can charge
legal users under the (A)(3) provision” because that statute
“does not require the State to prove that the marijuana was
illegally ingested[.]” Id. at 346–47, ¶ 16, 322 P.3d at 163–
64. Consistent with Harris, the AMMA does not operate as a
bar to Darrah's prosecution for DUI under A.R.S. § 28–
1381(A)(3).”
Medical Marijuana DUI
The Defense in Darrah argued:
• Immunity under Medical Marijuana law…
Medical Marijuana DUI
The Defense in Darrah argued:
• Immunity under Medical Marijuana law… NO
Medical Marijuana DUI
The Defense in Darrah argued:
• Immunity under Medical Marijuana law… NO
• Jury found Not Guilty on the A(1), therefore Court should
Set Aside Guilty verdict on the A(3)…
Medical Marijuana DUI
The Defense in Darrah argued:
• Immunity under Medical Marijuana law… NO
• Jury found Not Guilty on the A(1), therefore Court should
Set Aside Guilty verdict on the A(3)… NO
Medical Marijuana DUI
The Defense in Darrah argued:
• Immunity under Medical Marijuana law… NO
• Jury found Not Guilty on the A(1), therefore Court should
Set Aside Guilty verdict on the A(3)… NO
• Trial Court erred because Defense was not allowed to
argue Affirmative Defense which prohibits a DUI
conviction under § 28–1381(A)(3) (drug or its
metabolite) based on drug use “as prescribed by a medical
practitioner licensed pursuant to title 32, chapter 7, 11, 13
or 17.”…
Medical Marijuana DUI
The Defense in Darrah argued:
• Immunity under Medical Marijuana law… NO
• Jury found Not Guilty on the A(1), therefore Court should
Set Aside Guilty verdict on the A(3)… NO
• Trial Court erred because Defense was not allowed to
argue Affirmative Defense which prohibits a DUI
conviction under § 28–1381(A)(3) (drug or its
metabolite) based on drug use “as prescribed by a medical
practitioner licensed pursuant to title 32, chapter 7, 11, 13
or 17.”… NO
Medical Marijuana DUI
The Darrah Court did say, however:
“Darrah has raised no other issues in this special action and
thus we decline to express any opinion as to the existence of
a carve-out exception as addressed by the special
concurrence.”
Medical Marijuana DUI
The Darrah Court did say, however:
“Darrah has raised no other issues in this special action and
thus we decline to express any opinion as to the existence of
a carve-out exception as addressed by the special
concurrence.”
Hint Hint Hint!!!
Medical Marijuana DUI
The Court seems to be saying there is something that
the Defense Lawyer missed. An issue that was not
raised. Something that may be a Defense in a Medical
Marijuana DUI case.
Medical Marijuana DUI
In Darrah, the Defense Attorney DIDN’T argue the “CatchAll Provision”
§ 36-2802. Arizona Medical Marijuana Act; limitations
“[A] registered qualifying patient shall not be considered to
be under the influence of marijuana solely because of the
presence of metabolites or components of marijuana that
appear in insufficient concentration to cause impairment.”
Medical Marijuana DUI
In Darrah, the Defense Attorney DIDN’T argue the “CatchAll Provision”
§ 36-2802. Arizona Medical Marijuana Act; limitations
“[A] registered qualifying patient shall not be considered to
be under the influence of marijuana solely because of the
presence of metabolites or components of marijuana that
appear in insufficient concentration to cause impairment.”
As an Affirmative Defense!!!
Medical Marijuana DUI
“[A] registered qualifying patient shall not be considered to be
under the influence of marijuana solely because of the presence of
metabolites or components of marijuana that appear in insufficient
concentration to cause impairment.”
Category 1
Category 2
AMMA User with Marijuana in their
system WITH impairment
AMMA User with Marijuana in their
system WITHOUT impairment
Medical Marijuana DUI
In Darrah, Judge Cattani wrote a specially concurring
opinion, where she said:
[I]n my view, an authorized user cannot be convicted under § 28–
1381(A)(3) if he or she establishes that the amount of THC or
marijuana metabolite in the blood was in insufficient concentration
to cause impairment.
I concur in the result in this case, however, because Darrah did not
make such a showing.
Medical Marijuana DUI
The City presented testimony from a criminalist who indicated that
Darrah's blood contained 4.0 ng/ml of delta–9–tetrahydrocannabinol
(THC) and 47 ng/ml of 11–nor–delta–9–tetrahydrocannabinol–9–
carboxylic acid (carboxy THC), which the criminalist defined as
marijuana and a marijuana metabolite. Although the criminalist
agreed that carboxy THC is not psychoactive, she testified that THC
itself is psychoactive and can cause impairment, noting in particular
that 4.0 ng/ml “could possibly” cause impairment.
The criminalist testified that there is no consensus or agreement
within the scientific community regarding the amount of THC in a
person's body that would always indicate impairment.
Medical Marijuana DUI
The criminalist acknowledged, however, studies suggesting
impairment at a level of 5 ng/ml of THC, with “possible”
impairment at levels between 2 and 5 ng/ml.
Based on this testimony, Harris notwithstanding, in my view, an
authorized marijuana user with less than 2 ng/ml of THC in the
blood should not be convicted of driving under the influence
under § 28–1381(A)(3).
Medical Marijuana DUI
Argument to the Court:
Pursuant to § 36-2802(D), Defense wants to argue to the jury the
AFFIRMATIVE DEFENSE that because the Defendant was an
AMMA User, and “shall not be considered to be under the influence
of marijuana solely because of the presence of metabolites or
components of marijuana that appear in insufficient concentration to
cause impairment.”
Medical Marijuana DUI
Argument to the Court:
Pursuant to § 36-2802(D), Defense wants to argue to the jury the
AFFIRMATIVE DEFENSE that because the Defendant was an
AMMA User, and “shall not be considered to be under the influence
of marijuana solely because of the presence of metabolites or
components of marijuana that appear in insufficient concentration to
cause impairment.”
• Have Criminalist Testify
Medical Marijuana DUI
Argument to the Court:
Pursuant to § 36-2802(D), Defense wants to argue to the jury the
AFFIRMATIVE DEFENSE that because the Defendant was an
AMMA User, and “shall not be considered to be under the influence
of marijuana solely because of the presence of metabolites or
components of marijuana that appear in insufficient concentration to
cause impairment.”
• Have Criminalist Testify
• OR, just have Defendant testify that they didn’t feel impaired in
any way (therefore they had insufficient concentration to cause
impairment).
Medical Marijuana DUI
Since it is an Affirmative Defense, it is up to the jury to decide
whether the Defense has proven the Affirmative Defense by a
Preponderance of the Evidence.
Medical Marijuana DUI
Since it is an Affirmative Defense, it is up to the jury to decide
whether the Defense has proven the Affirmative Defense by a
Preponderance of the Evidence.
The point is:
• Get the jury to hear that Defendant had a Medical Marijuana Card
• Darrah DOES NOT preclude this… and the Specially Concurring
opinion seems to say this is fine.
• To not allow the Defense to argue § 36-2802(D), the court would
basically say that this portion of the law is superfluous.
Medical Marijuana DUI
Be sure you list this as an Affirmative
Defense in your Notices of Defenses
(4)
Attempted
DUI
Attempted Aggravated DUI
State v. Superior Court In and For County of Navajo,
190 Ariz. 203, (App. 1997).
Attempted Aggravated DUI IS valid!
Attempted Aggravated DUI
State v. Superior Court In and For County of Navajo, 190 Ariz. 203,
(App. 1997).
“Attempted aggravated DUI thus requires proof that the defendant, while under
the influence of intoxicating liquor or drugs, took any step beyond mere
preparation and toward driving or being in actual physical control of a motor
vehicle. Additionally, there must be a finding that the defendant knew or should
have known that his license was suspended, cancelled, revoked or refused or that
his privilege to drive was restricted. State v. Freeland, 176 Ariz. 544, 550, 863
P.2d 263, 269 (App.1993) (A.R.S. section 28-692.02 renumbered section 28-697).
A conviction for attempted aggravated DUI thus could result from findings by the
trier-of-fact that the defendant (1) under the influence of intoxicating liquor or
drugs (2) while his license was suspended, cancelled, revoked or refused or his
privilege to drive was restricted (3) had taken a step beyond mere preparation and
toward actual physical control of a vehicle without achieving actual physical
control of the vehicle. Attempted aggravated DUI therefore is a cognizable
offense.”
Attempted Aggravated DUI
State v. Superior Court In and For
County of Navajo, 190 Ariz. 203,
(App. 1997).
Attempted DUI IS NOT allowed
because of the provision of 28-692
which states:
(C) The state shall not dismiss a
charge of violating this section for
either of the following:
1. In return for a plea of guilty or
no contest to any other offense by
the person charged with the
violation of this section.
Attempted Aggravated DUI
ARS 28-1387(I) states:
Except for another violation of this
article, the state shall not dismiss a
charge of violating any provision
of this article unless there is an
insufficient legal or factual basis to
pursue that charge.
Attempted Aggravated DUI
28-692(C):
The state shall not dismiss a charge of
violating this section … In return for a
plea of guilty or no contest to any
other offense by the person charged
with the violation of this section.
COMPARE TO
ARS 28-1387(I):
Except for another violation of this
article, the state shall not dismiss a
charge of violating any provision of
this article unless there is an
insufficient legal or factual basis to
pursue that charge.
Attempted Aggravated DUI
Arizona court of Appeals already said
Attempt is applicable to Aggravated
DUI.
Court specifically held:
“Attempted aggravated DUI thus
requires proof that the defendant, while
under the influence of intoxicating
liquor or drugs, took any step beyond
mere preparation and toward driving or
being in actual physical control of a
motor vehicle. Additionally, there must
be a finding that the defendant knew or
should have known that his license was
suspended, cancelled, revoked or
refused or that his privilege to drive
was restricted.”
Attempted Aggravated DUI
Judge: But Counsel, DUI has no mens rea, and does not require any form of
Intent, how can Attempt therefore be a consideration of the jury on a Strict
Liability Offense.
Lawyer: Your Honor, the Court of Appeals in State v. Superior Court In and
For County of Navajo, 190 Ariz. 203, (App. 1997) specifically held that
Attempt was a consideration for the jury, and in an Aggravated DUI charge, the
“Attempt” portion concerned whether the Defendant “took any step beyond
mere preparation and toward driving or being in actual physical control of a
motor vehicle.”
NOT THE MENS REA REQUIREMENT OF KNOWELDGE OF
STATUS OF LICENSE OR PRIVILEGE TO DRIVE!
Attempted Aggravated DUI
Judge: How can you ask a Jury to consider Attempt on a Class 1
Misdemeanor. If the jury convicted the person of Attempt, what would be the
charge
Lawyer: Your Honor, Pursuant to 13-1001(C)(7), An “Attempt” conviction on
a Class 1 Misdemeanor becomes a Class 2 Misdemeanor conviction
Also, we know that Attempt applies to Title 28 Offenses because the Court of
Appeals in State v. Superior Court In and For County of Navajo, 190 Ariz. 203,
(App. 1997) specifically held that Attempt was appropriate in a Title 28
Offense, in that case, Aggravated DUI
Attempted Aggravated DUI
Judge: Counsel, this Navajo case you cite specifically said that Attempt DID
NOT apply to a Misdemeanor DUI case.
Lawyer: Your Honor, that is correct, because at the time, 28-692, the precursor
to 28-1381 specifically had a provision that stated that “The state shall not
dismiss a charge of violating this section … in return for a plea of guilty or no
contest to any other offense by the person charged with the violation of this
section.”
That provision no longer exists, but appears to have been replaced with a similar
provision, now in ARS 28-1387(I), which states that “Except for another
violation of this article, the state shall not dismiss a charge of violating any
provision of this article unless there is an insufficient legal or factual basis to
pursue that charge.”
A conviction of Attempted DUI would still be a
violation of Title 28, Article 3.
Attempted Aggravated DUI
Judge: Well, I’ve never done that before.
Lawyer: Uh, that isn’t a proper legal basis to deny a proper Defense and a proper
Jury Instruction
Attempted Aggravated DUI
Benefits:
• No Required Minimum Jail Sentence
Attempted Aggravated DUI
Benefits:
• No Required Minimum Jail Sentence
• No Required Minimum Fines & Fees
Attempted Aggravated DUI
Benefits:
• No Required Minimum Jail Sentence
• No Required Minimum Fines & Fees
• No Required Ignition Interlock Device
Attempted Aggravated DUI
Benefits:
• No Required Minimum Jail Sentence
• No Required Minimum Fines & Fees
• No Required Ignition Interlock Device
• No Required License Suspension / Revocation
Attempted Aggravated DUI
Benefits:
• No Required Minimum Jail Sentence
• No Required Minimum Fines & Fees
• No Required Ignition Interlock Device
• No Required License Suspension / Revocation
• No Required Counseling
Attempted Aggravated DUI
Court of Appeals in Navajo case did state, when
referencing the applicability of an Attempted
Aggravated DUI:
“… requires proof that the defendant, while under the
influence of intoxicating liquor or drugs, took any step
beyond mere preparation and toward driving or being
in actual physical control of a motor vehicle.”
This absolutely would apply to an Attempted DUI as well!
Attempted Aggravated DUI
Where Am I Going To Use This?
• Client was seen driving by a Civilian, but was found parked on the
roadside or in a parking lot when officers came to the scene – voluntarily
relinquished control, but Shelter Rule only applies to APC, not Driving
Attempted Aggravated DUI
Where Am I Going To Use This?
• Client was seen driving by a Civilian, but was found parked on the
roadside or in a parking lot when officers came to the scene – voluntarily
relinquished control, but Shelter Rule only applies to APC, not Driving
• “I wasn’t going to drive, I was just moving my car to a different spot in
the parking lot so it wouldn’t get towed.”
Attempted Aggravated DUI
Where Am I Going To Use This?
• Client was seen driving by a Civilian, but was found parked on the
roadside or in a parking lot when officers came to the scene – voluntarily
relinquished control, but Shelter Rule only applies to APC, not Driving
• “I wasn’t going to drive, I was just moving my car to a different spot in
the parking lot so it wouldn’t get towed.”
• Great Shelter Rule Defense, but the Defendant said they were planning
on driving, or reached for the keys or gearshift when the officers
approached
Attempted Aggravated DUI
Where Am I Going To Use This?
• Client was seen driving by a Civilian, but was found parked on the
roadside or in a parking lot when officers came to the scene – voluntarily
relinquished control, but Shelter Rule only applies to APC, not Driving
• “I wasn’t going to drive, I was just moving my car to a different spot in
the parking lot so it wouldn’t get towed.”
• Great Shelter Rule Defense, but the Defendant said they were planning
on driving, or reached for the keys or gearshift when the officers
approached
• Could Negotiate Plea of Reckless Driving, but client can’t meet Factual
Basis since they slept in the car, with the engine running, after walking to
their car when the bar closed
Attempted Aggravated DUI
Where Am I Going To Use This?
We might want to ask for this any time the
case comes down to an APC DUI, but we
don’t want to go in All-or-Nothing.
(5)
Admin Per Se
nd
on 2 Time
Offense
Admin Per Se on 2nd Time Offense
No reason not to fight it.
For 2nd time offense, will get SR22 anyways.
If you win Admin Hearing, and if convicted,
can get restricted license after 45 days
instead of 90 days
IGNITION INTERLOCK LICENSE FOR 2ND TIME
REGULAR, EXTREME, & SUPER EXTREME DUI
OFFENDER - §28-1381 & §28-1382
On a one year license
revocation for ANY 2nd
Time Misdemeanor DUI,
defendant can get an
Ignition Interlock
Restricted Driver’s
License after completing
45 days of the
revocation period.
(6)
Memorandum
Decisions
Memorandum Decisions
Prosecutors Citing to Memo Decisions!!!
Unethical!
Case Law right on point: State v Trent - Court of Appeals Case from 2007
Not Reported in P.3d, 2007 WL 5290479
Ariz.App. Div. 2, 2007.
October 12, 2007 (Approx. 8 pages)
Memorandum Decisions
State Bar Ethical Opinion
OPINION NO. 87-14
July 20, 1987
Question: What is the ethical propriety
of citing to a trial court in Arizona a
memorandum decision of the Arizona
Supreme Court or Arizona Court of
Appeals, other than for the purpose of
establishing res judicata, collateral
estoppel or the law of the case, if he
makes clear in his brief and argument that
the memorandum decision is not precedent
and is cited for its persuasive value only;
Answer:
Unethical!!!
Memorandum Decisions
HOWEVER
Arizona Supreme Court Rules, Rule 111
recently changed, and now states:
(c) Dispositions as Precedent.
(1) Memorandum decisions of Arizona
state courts are not precedential and such a
decision may be cited only:
C) for persuasive value, but only if it was
issued on or after January 1, 2015; no
opinion adequately addresses the issue
before the court; and the citation is not to a
depublished opinion or a depublished
portion of an opinion.
APDA 2015
DUI Life Hacks
28-1382(I) – Time Deleted for IID Installation on
Extreme & Super Extreme DUIs
[A]t the time of sentencing if the person is convicted of a violation of
subsection A, paragraph 1 of this section, the judge may suspend all but
nine days of the sentence if the person equips any motor vehicle the
person operates with a certified ignition interlock device for a period of
twelve months.
If the person is convicted of a violation of subsection A, paragraph 2 of
this section, the judge may suspend all but fourteen days of the sentence if
the person equips any motor vehicle the person operates with a certified
ignition interlock device for a period of twelve months.
28-1382(I) – Time Deleted for IID Installation on
Extreme & Super Extreme DUIs
[A]t the time of sentencing if the person is convicted of a violation of
subsection A, paragraph 1 of this section, the judge may suspend all but
nine days of the sentence if the person equips any motor vehicle the
person operates with a certified ignition interlock device for a period of
twelve months.
1st Time Extreme DUI 30 – 21 (IID) = 9 Days Jail
28-1382(I) – Time Deleted for IID Installation on
Extreme & Super Extreme DUIs
If the person is convicted of a violation of subsection A, paragraph 2 of
this section, the judge may suspend all but fourteen days of the sentence if
the person equips any motor vehicle the person operates with a certified
ignition interlock device for a period of twelve months.
1st Time Super Ext. DUI: 45 – 31 (IID) = 14 Days Jail
28-1382(I) – Time Deleted for IID Installation on
Extreme & Super Extreme DUIs
How about sentences on a 1st Time Extreme DUI of 40 days:
40 – 21 (IID) = 19 Days Jail
28-1382(I) – Time Deleted for IID Installation on
Extreme & Super Extreme DUIs
How about sentences on a 1st Time Extreme DUI of 40 days:
40 – 21 (IID) = 19 Days Jail
NO!
28-1382(I): [A]t the time of sentencing if the person is convicted of a
violation of subsection A, paragraph 1 of this section, the judge may
suspend all but nine days of the sentence if the person equips any motor
vehicle the person operates with a certified ignition interlock device for a
period of twelve months.
40 – 31 (IID) = 9 Days Jail
28-1382(I) – Time Deleted for IID Installation on
Extreme & Super Extreme DUIs
How about sentences on a 1st Time Super Extreme DUI of 50 days:
50 – 31 (IID) = 21 Days Jail
NO!
28-1382(I): If the person is convicted of a violation of subsection A,
paragraph 2 of this section, the judge may suspend all but fourteen days of
the sentence if the person equips any motor vehicle the person operates
with a certified ignition interlock device for a period of twelve months.
50 – 36 (IID) = 14 Days Jail
Blood Preservatives & Anti-Coagulants
Preservatives
Sodium Fluoride
Anti-Coagulants
Potassium Oxalate
Blood Preservatives & Anti-Coagulants
Preservatives
Anti-Coagulants
Blood Preservatives & Anti-Coagulants
Preservatives
Sodium Fluoride
Anti-Coagulants
Potassium Oxalate
Blood Preservatives & Anti-Coagulants
Preservatives
Sodium Fluoride
Anti-Coagulants
Potassium Oxalate
Blood Preservatives & Anti-Coagulants
Preservatives
Sodium Fluoride
Anti-Coagulants
Potassium Oxalate
Ignition Interlock Plea Agreements
ARS 28-1383(A)(4)
While the person is ordered by the court or required pursuant to section
28-3319 by the department to equip any motor vehicle the person
operates with a certified ignition interlock device, commits a violation of
section 28-1381, section 28-1382 or this section.
Ignition Interlock Plea Agreements
ARS 28-1383(A)(4)
While the person is ordered by the court or required pursuant to section
28-3319 by the department to equip any motor vehicle the person
operates with a certified ignition interlock device, commits a violation of
section 28-1381, section 28-1382 or this section.
• No Minimum Required Sentence
Ignition Interlock Plea Agreements
ARS 28-1383(A)(4)
While the person is ordered by the court or required pursuant to section
28-3319 by the department to equip any motor vehicle the person
operates with a certified ignition interlock device, commits a violation of
section 28-1381, section 28-1382 or this section.
• No Minimum Required Sentence
• Jail Instead of Prison
Ignition Interlock Plea Agreements
ARS 28-1383(A)(4)
While the person is ordered by the court or required pursuant to section
28-3319 by the department to equip any motor vehicle the person
operates with a certified ignition interlock device, commits a violation of
section 28-1381, section 28-1382 or this section.
• No Minimum Required Sentence
• Jail Instead of Prison
• Work Furlough or Work Release
Endangerment w/o the DUI
3-Minute Closing SUCCESS
Endangerment Combo
PC & Chrome Users
This PowerPoint Presentation
&
The Guide to ALL DUI Fines, Fees, and
Punishments – 2015 Edition
Will be available for free download at
www.MCDUI.com
This Guide is meant for the Defense Lawyer
Community only (not clients or Prosecutors).
I welcome any comments or suggestions